Proctor v. Costco Wholesale Corporation

2013 UT App 226
_________________________________________________________
THE U TAH COURT OF A PPEALS
R OBERT D. P ROCTOR,
Plaintiff and Appellant,
v.
C OSTCO WHOLESALE C ORPORATION,
Defendant and Appellee.
Opinion
No. 20120122‐CA
Filed September 19, 2013
Third District, Salt Lake Department
The Honorable Tyrone E. Medley
No. 080920146
Matthew H. Raty, Attorney for Appellant
Kristin A. Van Orman, Jeremy G. Knight, and
K. Marie Kulbeth, Attorneys for Appellee
J UDGE STEPHEN L. R OTH authored this Opinion, in which J UDGES
G REGORY K. ORME and WILLIAM A. T HORNE J R .1 concurred.
ROTH, Judge:
¶1 	Robert Proctor appeals from the unfavorable result in his
negligence suit against Costco Wholesale Corporation. Specifically,
Proctor asserts that the trial court improperly granted a partial
directed verdict in favor of Costco on two of his allegations of
negligence and abused its discretion when it declined to reinstate
one of the two allegations after Costco elicited testimony on the
issue during the presentation of its defense. Proctor also challenges
1. Judge William A. Thorne Jr. participated in and voted on this
case as a member of the Utah Court of Appeals. He retired from the
court before this decision issued.

Proctor v. Costco
the trial court’s denial of his own motion for directed verdict.
Finally, Proctor claims that there was insufficient evidence to
support the jury’s verdict in favor of Costco. We affirm.
BACKGROUND
¶2 	On May 8, 2008, Proctor arrived to shop at a Costco store in
Murray, Utah, approximately fifteen minutes before it opened for
the day. While Proctor was waiting outside the store, Jerryl
Holtkamp, a Costco member service supervisor and the store’s
safety coordinator, came into the parking lot pushing a wheel base,
on which twelve orange traffic cones were stacked. Holtkamp
chatted with Proctor while she set out three of the cones. As she
pushed the wheel base with the remaining cones, it caught on a
crack in the sidewalk, spilling the stack of cones to the ground.
Holtkamp asked Proctor to move the stack of cones back onto the
wheel base because “[h]e looked healthy enough, strong enough”
to lift them. Holtkamp was unable to lift the stack herself because
she had a physician‐imposed twenty‐pound lifting restriction as a
result of an elbow injury as well as a weak arm and shoulder. The
cones were base‐weighted and weighed twelve to twenty pounds
each.
¶3 	The parties disagree about what happened next. Proctor
testified that because he believed the cones to be lightweight
plastic, he bent at the waist, grabbed the cones by sticking two
fingers into an opening in the cone at the top of the stack, and tried
to yank the stack upright. As he yanked, Proctor felt a tear in his
shoulder, causing him to drop the cones. At that point, according
to Proctor, Holtkamp issued a warning about how heavy the cones
were and urged Proctor to use care. Holtkamp, on the other hand,
testified that Proctor “picked up the black bases with his right arm
and [used] his left arm . . . at the tip” per her direction to “lift the
black part up on to the [wheel] base, but be careful because they are
heavy.” Prior to actually lifting the cones, however, Proctor
dropped the cones and said, “Jerryl, I think I hurt my shoulder.”
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Proctor v. Costco
The parties agree that Holtkamp then removed a couple of cones
from the stack and asked Proctor to lift them again. Proctor refused
because he had injured his shoulder.
¶4 	Proctor then entered Costco where he completed his
shopping and reported his injury to management. After leaving
Costco, Proctor immediately saw a doctor, who referred him to
physical therapy. When the therapy did not improve his shoulder,
Proctor scheduled an appointment with an orthopedic surgeon.
Proctor underwent surgery in late June 2008 to repair a severed
biceps tendon and a torn labrum.
¶5 	Proctor sued Costco, alleging a single cause of action for
negligence. The case proceeded to trial where the parties stipulated
to a jury instruction outlining Proctor’s allegations 2 of negligence
against Costco:
(1) Placing its employee, Jerryl Holt[k]amp in a
position she could not perform on her own;
(2) Spilling the stack of cones over;
(3) Asking a non‐employee to help perform a task for
Costco;
(4) Failing to warn Mr. Proctor that the cones were
weighted and heavy, until after he lifted them; and
(5) Failing to instruct Mr. Proctor on how to lift the
stack of cones.
Following Proctor’s case‐in‐chief, Costco moved for directed
verdict on the first three allegations. The court granted Costco’s
2. The parties treat Proctor’s allegations of negligence as distinct
factual components of a single claim of negligence. We will also use
the term “allegations” for convenience and consistency without
attributing any legal significance to the term.
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Proctor v. Costco
request as to the first two allegations but determined that there was
prima facie evidence of the remaining allegations of negligence.
Costco then put on its defense, which included calling Holtkamp
as a witness. After Holtkamp testified that she was using care in
pushing the cones, Proctor moved to “restore [the] deleted
allegation . . . asserting that Ms. Holtkamp was negligent in spilling
the stack of cones” on the basis that Costco “opened the door . . . on
Ms. Holtkamp’s conduct in spilling these cones.” The trial court
denied 	that 	request, 	explaining, 	“There’s 	nothing 	in 	Ms.
Holtkamp’s testimony that would modify this Court’s ruling.”
After Costco completed the presentation of its case, Proctor moved
for directed verdict in his favor. The trial court denied Proctor’s
motion, and the jury concluded that Costco had not been negligent
with 	respect 	to 	the 	remaining 	allegations. 	Proctor 	appeals,
challenging the grant of partial directed verdict in favor of Costco,
the denial of his own motion for directed verdict, and the
sufficiency of the evidence to support the jury’s verdict.
ISSUES AND STANDARDS OF REVIEW
¶6 	Proctor challenges the trial court’s rulings on both parties’
motions for directed verdict. Appellate courts review the grant or
denial of a motion for directed verdict for correctness. Gilbert Dev.
Corp. v. Wardley Corp., 2010 UT App 361, ¶ 15, 246 P.3d 131.
Accordingly, 	we 	“‘will 	sustain 	a 	directed 	verdict 	if[,] 	after
examining all evidence in a light most favorable to the non‐moving
party, there is no competent evidence that would support a verdict
in the non‐moving party’s favor.’” Id. (alteration in original)
(quoting Ferguson v. Williams & Hunt, Inc., 2009 UT 49, ¶ 19, 221
P.3d 205). We will affirm the denial of a motion for directed verdict
when a review of the evidence in a light most favorable to the non‐
moving party demonstrates that “reasonable minds could disagree
with the ground asserted for directing a verdict.” Florez v. Schindler
Elevator Corp., 2010 UT App 254, ¶ 8, 240 P.3d 107 (citation and
internal quotation marks omitted).
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Proctor v. Costco
¶7 	Proctor also contends that there is insufficient evidence to
support the jury’s verdict in favor of Costco.
In reviewing a jury verdict, we view the evidence
in the light most supportive of the verdict, and
assume that the jury believed those aspects of the
evidence which sustain its findings and judgment.
Accordingly, we will upset a jury verdict only upon
a showing that the evidence so clearly preponderates
in favor of the appellant that reasonable people
would not differ on the outcome of the case.
Billings v. Union Bankers Ins. Co., 918 P.2d 461, 467 (Utah 1996)
(citations and internal quotation marks omitted).
ANALYSIS
I. Grant of Partial Directed Verdict to Costco
¶8 	Proctor contends that the trial court improperly granted
Costco’s motion for partial directed verdict on the first two
allegations. In particular, Proctor claims that directing the verdict
was error because prior to trial, Costco had agreed to allow him to
offer additional evidence on these allegations during Costco’s
defense and because Costco had withdrawn its motion with respect
to the first allegation prior to the court’s ruling. Proctor points to
the following representations during argument on Costco’s partial
directed verdict motion as evidence that the trial court’s ruling was
error:
[Proctor’s Attorney]: [W]e’re going to prove a lot of
the negligence in this case through the testimony of
Costco’s employee[s] which [Costco’s attorney] and
I discussed and she said she was bringing them to
trial. I didn’t need to call them in my case in chief,
that I would be able to examine them when she
called them. . . .
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Proctor v. Costco
. . . And [negligence is] going to be well developed as
I examine those witnesses who will be called this
afternoon.
. . . .
[Costco’s Attorney]: Now, on the one with Ms.
Holtkamp, placing her in a position [she could not
perform (allegation one)], I could understand where
he may want to talk with the supervisors, that’s fine
. . . .
Proctor contends that rather than granting Costco’s request for
partial directed verdict, the court should instead have reserved a
ruling on the motion until after he had cross‐examined Costco’s
witnesses. See Utah R. Civ. P. 50(a) (explaining that directed verdict
is appropriate only after the close of the non‐moving party’s
evidence).
¶9 	Proctor is correct that, in light of the parties’ stipulation and
Costco’s withdrawal of its motion regarding allegation one, the
trial court should have waited to rule on Costco’s motion for partial
directed verdict until after Proctor finished presenting his case,
including anticipated cross‐examination of certain of Costco’s own
witnesses.3 Proctor has not demonstrated, however, that this error
3. Costco does not deny that it stipulated before trial that Proctor
could 	put 	on 	a 	portion 	of 	his 	case‐in‐chief 	through 	cross‐
examination of certain Costco witnesses during the presentation of
Costco’s defense case. And Costco has provided no satisfactory
explanation for why it apparently violated that agreement by
moving for partial directed verdict based on the insufficiency of the
evidence after Proctor had put on only his own witnesses. That we
ultimately rule against Proctor for other reasons should not be
taken as an endorsement of Costco’s conduct.
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Proctor v. Costco
prejudiced him, and a harmless error does not require reversal.4 See
Covey v. Covey, 2003 UT App 380, ¶ 21, 80 P.3d 553 (“Harmless
error is defined . . . as an error that is sufficiently inconsequential
that we conclude there is no reasonable likelihood the error
affected the outcome of the proceedings. . . . On appeal, the
appellant 	has 	the 	burden 	of 	demonstrating 	an 	error 	was
prejudicial—that there is a reasonable likelihood that the error
affected the outcome of the proceedings.” (citations and internal
quotation marks omitted)); see also Utah R. Civ. P. 61 (“Harmless
error”). We conclude that Proctor was not prejudiced by the court’s
error in directing a verdict on the first two allegations because he
cannot establish, as a matter of law, that any negligence by Costco
in assigning Holtkamp the task of setting out the cones or any
negligence by Holtkamp in spilling the cones was a legal, or
proximate, cause of his injury. See generally Webb v. University of
Utah, 2005 UT 80, ¶ 9, 125 P.3d 906 (“[A] plaintiff must establish
four essential elements [to prove negligence]: (1) that the defendant
owed the plaintiff a duty, (2) that the defendant breached that duty,
(3) that the breach of duty was the proximate cause of the plaintiff’s
injury, and (4) that the plaintiff in fact suffered injuries or
damages.” (emphasis added) (citation and internal quotation marks
omitted)).5
4. Proctor also claims that the court erred when it later declined “to
restore th[e] deleted allegation . . . asserting that Ms. Holtkamp was
negligent in spilling the stack of cones over.” For the same reasons
that we hold that the error in granting the partial directed verdict
was harmless, any error in the court’s refusal to reinstate the
allegation was harmless.
5. The parties did not address proximate cause in their briefing, but
the issue was discussed at oral argument. Appellate courts have the
authority to affirm the district court on any basis apparent on the
record. See Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158. We elect
to do so here because it is clear that Proctor cannot establish
proximate cause as a matter of law.
(continued...)
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Proctor v. Costco
¶10 	Proximate cause is “[a] cause that directly produces an event
and without which the event would not have occurred.” Black’s
Law Dictionary 250 (9th ed. 2009). To prove proximate cause,
however, it is not enough to show that a negligent act brought
about the injury; rather, a plaintiff must demonstrate that the act
was the “efficient, producing cause” of the injury, CSX Transp., Inc.
v. McBride, 131 S. Ct. 2630, 2642 (2011) (internal quotation marks
omitted), meaning “that cause which, in a natural and continuous
sequence, unbroken by any new cause, produced the injury, and
without which the injury would not have occurred,” Bunker v.
Union Pacific R.R. Co., 114 P. 764, 775 (Utah 1911). See also
Holmstrom v. C.R. England, Inc., 2000 UT App 239, ¶ 36, 8 P.3d 281
(explaining that the defendant’s negligence is a proximate cause
only if the negligence “played a substantial role in causing the
[plaintiff’s] injuries”). In other words, “[p]roximate cause refers to
the basic requirement that before recovery is allowed in tort, there
must be some direct relation between the injury asserted and the
5. (...continued)
Although proximate cause is generally a matter for the jury,
it becomes a question of a law when “the facts are undisputed and
but one reasonable conclusion can be drawn therefrom.” Dee v.
Johnson, 2012 UT App 237, ¶ 3, 286 P.3d 22 (citation and internal
quotation marks omitted); see also, e.g., Massey v. Utah Power &
Light, 609 P.2d 937, 937–39 (Utah 1980) (determining as a matter of
law that the power company’s negligence in installing the power
lines too low was not the proximate cause of the plaintiff’s
electrocution injury because “a subsequent actor observe[d] that
condition and negligently fail[ed] to avoid it” when he asked the
plaintiff to help load an auger onto a truck with a telescopic boom
that could strike the lines); Bansaine v. Bodell, 927 P.2d 675, 677 &
n.2 (Utah Ct. App. 1996) (deciding as a matter of law that the
defendant’s reckless driving was not the proximate cause of the
shooting death of a passenger because “reasonable persons could
not disagree” that the driver could not have foreseen that a third
person would shoot into the vehicle as a consequence of the
driver’s aggressive driving).
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Proctor v. Costco
injurious conduct alleged,” i.e., “it limits liability at some point
before the want of a nail leads to the loss of the kingdom.” CSX
Transp., 131 S. Ct at 2645–46 (Roberts, C.J., dissenting); see also W.
Page Keeton, Prosser and Keeton on the Law of Torts § 41, at 264 (5th
ed. 1984) (explaining that proximate cause is “an unfortunate term”
that does not focus so much on “cause” but instead merely
attempts to articulate the “limitation [that] the courts have placed
upon the actor’s responsibility for the consequences of the actor’s
conduct”).
¶11 	As a natural corollary, an “actor’s negligent conduct is not a
[proximate cause] in bringing about harm to another if the harm
would 	have 	been 	sustained 	even 	if 	the 	actor 	had 	not
been negligent.” Holmstrom, 2000 UT App 239, ¶ 46 (citing
Restatement (Second) of Torts § 432(1) (1965)); see also W. Page
Keeton, Prosser and Keeton on the Law of Torts § 41, at 268 (5th
ed. 1984) (explaining that except in cases where more than one
person contributes to the plaintiff’s injury, “no case has been found
where the defendant’s act could be called a [proximate cause]
when the event would have occurred without it”). “Furthermore,
foreseeability is an element of proximate cause” that requires an
“inquiry” into “‘the specifics of the alleged tortious conduct,’ such
as 	‘whether 	the 	specific 	mechanism 	of 	the 	harm 	could 	be
foreseen.’” Dee v. Johnson, 2012 UT App 237, ¶ 5, 286 P.3d 22
(quoting Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶¶ 18, 20,
215 P.3d 152) (additional citation and internal quotation marks
omitted).
¶12 	These principles were applied in Dee, a case where due to
driver negligence, the defendant’s vehicle slid off the road into a
median on a snowy section of an interstate highway, setting into
motion a sequence of events that resulted in the plaintiff’s injury.
Id. ¶ 2. After the defendant landed in the median, he contacted the
Utah Highway Patrol, which sent a tow truck. Id. The tow truck
pulled the defendant’s car out of the median and back onto the
highway, partially blocking the left lane. Id. The plaintiff, traveling
along the same highway, lost control of his vehicle and slid into the
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Proctor v. Costco
parked tow truck, resulting in the plaintiff’s injury. Id. We affirmed
the 	trial 	court’s 	summary 	judgment 	determination 	that 	the
defendant’s negligence was not a proximate cause of the plaintiff’s
injuries. Id. ¶ 6. The defendant’s negligent act—“driving his vehicle
in a way that caused it to slide into the median”—did not itself
cause the plaintiff any injury. Id. Nor was the vehicle, once it was
in the median, any threat to the plaintiff; “indeed, had [the
defendant]’s car remained in the median, presumably the collision
would never have occurred.” Id. And the “‘specific mechanism of
the harm’” that happened to the plaintiff—“the risk of injury to
another driver from a negligent tow truck driver” if the defendant’s
negligent driving resulted in his needing to be towed—was not
foreseeable at the time that the defendant acted negligently. Id.
¶¶ 5, 7 (quoting Normandeau, 2009 UT 44, ¶ 20). Accordingly, “the
legal separation between [the defendant]’s driving on the slick
highway and [the plaintiff]’s injury [wa]s too great to satisfy the
requirements of proximate cause.” Id. ¶ 7 (citing Fordham v.
Oldroyd, 2007 UT 74, ¶ 30, 171 P.3d 411 (Wilkins, J., concurring and
dissenting) (electing to employ a “traditional negligence analysis”
rather than adopting the professional rescuer doctrine as the
majority did and concluding that “[t]he legal separation between
[the first driver]’s driving onto the slick road and the trooper’s
injury[, which resulted from a second driver’s negligence,] is just
too great to sustain a claim” that the first driver’s negligence was
the proximate cause of the trooper’s injury)).
¶13 	As in Dee, Costco’s assignment of the task of setting out the
cones to Holtkamp and Holtkamp’s conduct in performing that
task 	produced 	a 	sequence 	of 	events 	that 	led 	to 	Holtkamp
requesting assistance from Proctor and ultimately to Proctor’s
injury. However, regardless of how the stack of cones came to be
on the ground—through either the negligence of Holtkamp or
Costco or otherwise—the spilling of the cones was only a type of
“causation in fact,” which is not the equivalent of “legal causation.”
The type of injury to be expected from any such negligence on
Holtkamp’s or Costco’s part would be from the stack of cones
hitting 	Proctor 	as 	they 	fell 	over 	or 	perhaps 	from 	Proctor
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Proctor v. Costco
instinctively rushing over to steady the cones as they began to fall.
But the falling cones did not injure Proctor nor did he try to steady
them, and once the cones were on the ground, they posed no threat
of injury to Proctor until Holtkamp asked him to help her by lifting
them back onto the wheel base. “[I]ndeed, had [the cones]
remained [on the pavement], presumably the [injury] would never
have occurred.” See Dee, 2012 UT App 237, ¶ 6. Thus, at the point
when the cones ended up on the ground, “the legal separation”
between Proctor’s injury and the acts of Costco or Holtkamp that
resulted in the cones falling to the ground, however negligent they
might have been, “is too great” to render those acts the proximate
cause of Proctor’s injury. See id. ¶ 7; see also CSX Transp., 131 S. Ct.
at 2637 (“Injuries have countless causes, and not all should give rise
to legal liability”(citing W. Page Keeton, Prosser and Keeton on the
Law of Torts § 42, at 273 (5th ed.1984)); instead, “‘the law . . .
declines to trace a series of events beyond a certain point.’”
(quoting Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 103 (N.Y. 1928)
(Andrews, J., dissenting))); Fordham, 2007 UT 74, ¶ 30 (Wilkins, J.,
concurring and dissenting) (“Proximate cause is a legal limit to
liability,” which precludes recovery for a negligent act that may
“be part of a chain of events eventually leading to an injury, but
still [is] too remote to warrant holding the negligent party liable for
the injury.”).
¶14 	Thus, no matter how the cones ended up on the ground, the
act of their falling and the circumstances leading up to their falling,
did not legally cause Proctor’s shoulder injury. Rather, the
potential proximate causes of Proctor’s injury occurred only after
the cones were on the ground and involved Proctor’s allegations
that Holtkamp requested that he help her by picking up the cones
and then failed to provide any warning about their weight or any
instruction on proper lifting technique. See Holmstrom, 2000 UT
App 239, ¶ 46 (“‘[An] actor’s negligent conduct is not [a proximate
cause] . . . in bringing about harm to another if the harm would
have been sustained even if the actor had not been negligent.’”
(quoting Restatement (Second) of Torts § 432(1) (1965))). These are
the claims that survived Costco’s motion for partial directed verdict
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Proctor v. Costco
and were ultimately resolved by the jury in Costco’s favor. Because
Proctor could not have established that his first two allegations
were a proximate cause of his injuries even if they had survived the
motion, the court’s error in directing a verdict was harmless. See
Dee, 2012 UT App 237, ¶ 3 (explaining that proximate cause
becomes a question of a law when “the facts are undisputed and
but one reasonable conclusion can be drawn therefrom” (citation
and internal quotation marks omitted)).
¶15 	Furthermore, we are not persuaded by Proctor’s argument
that exclusion of evidence relating to the first two allegations was
prejudicial because had the jury heard all of the evidence related to
his negligence claim, it would have “see[n] the full picture of
negligence[] and likely would have [come to] a different verdict.”
A plaintiff is not entitled to present evidence that does not pertain
to an issue before the jury. Cf. Hahnel v. Duchesne Land, LC, 2013 UT
App 150, ¶ 14, 305 P.3d 208 (declining to conclude that Buyers had
been precluded from putting on a complete case on the basis that
“the jury might have found Sellers in breach if Buyers’ injury had
been greater” because whether there was a breach of contract is a
separate inquiry unrelated to the extent of damages).
¶16 	But even if the circumstances leading up to Holtkamp’s
spilling of the cones were relevant as background in order to paint
a full picture of how the events unfolded, Proctor was able to
present the jury with much of the pertinent evidence despite the
partial directed verdict. For example, Proctor inquired, without
objection, about the nature of Holtkamp’s elbow injury and about
her ability to perform the task of putting out the traffic cones given
her doctor’s orders restricting her lifting to twenty pounds. He also
questioned Holtkamp at length about Costco’s knowledge of and
attempts to accommodate her doctor‐imposed lifting restriction,
including moving her to the member service supervisor position
that she held at the time of Proctor’s injury. This questioning
included a concession from Holtkamp that the job description of
the member service supervisor position stated that the supervisor
would occasionally have to lift up to fifty pounds, a weight beyond
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Proctor v. Costco
her lifting restrictions. Proctor also asked Holtkamp, again without
objection from Costco, about her conduct while pushing the wheel
base from which the cones spilled. Proctor had earlier testified that
Holtkamp had been “having a conversation” with him, “being
friendly” and “possibly” flirting, while pushing the cones on the
wheel base. In an attempt to portray Holtkamp as distracted while
pushing the cones and not being careful, as she had earlier claimed
to have been, Proctor’s counsel asked Holtkamp whether she was
“talking to [him] the entire time that [she was] wheeling the cones.”
Holtkamp 	responded 	that 	she 	“was 	talking 	to 	him 	as 	he
approached and then just that part where we were trying to tip [the
cones] back up” onto the wheel base. Although this answer could
suggest that there was some separation between Holtkamp and
Proctor’s initial conversation and the spilling of the cones, both
Proctor and Holtkamp had testified that the cones spilled shortly
after Holtkamp pushed the wheel base over toward Proctor and
that the conversation and the spilling were contemporaneous.
Indeed, Holtkamp had earlier said,
That morning I took the cones out, I pushed
them through the [door] vestibule and I had them
out on to the sidewalk. . . . I got out there and he
started—Mr. Proctor walked—was coming in from
the parking lot and he was like how are you? And I
was like oh, and then I put out a few [cones] and I
was just talking with him. He was very friendly.
. . . .
I’m pushing them . . . . And as I’m just
pushing, and I am talking, . . . the wheel on the base
stuck into the crack in the sidewalk and . . . it pushed
the cones over.
(Emphasis added.) This testimony supports an inference that
Holtkamp’s response meant that she was talking with Proctor
while she was pushing the wheel base carrying the cones. Thus,
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Proctor v. Costco
despite the grant of partial directed verdict, Proctor was able to
present the jury with a reasonably full picture of the circumstances
that resulted in his injury.
¶17 	In summary, the trial court’s grant of partial directed verdict
in Costco’s favor on the first two allegations was error due to the
parties’ agreement about the presentation of evidence and Costco’s
partial withdrawal of its motion. That error, however, was
harmless 	because 	neither 	allegation, 	even 	if 	proven, 	could
constitute a legal cause of Proctor’s injury. Additionally, no other
harm resulted from the grant of partial directed verdict because
Proctor was still able to put on evidence that provided the jury
with a relatively complete picture of the events that led up to his
injury to the extent that the totality of the circumstances was
pertinent to his surviving claims. We therefore decline to reverse
the grant of directed verdict to Costco on allegations one and two.
II. Denial of Proctor’s Motion for Directed Verdict
¶18 	Proctor next contends that the trial court ought to have
granted his own motion for directed verdict. We uphold the trial
court’s decision because when viewing the evidence in favor of
Costco, as we must, we conclude that “reasonable minds could
disagree with the ground [Proctor] asserted for directing a verdict.”
See Florez v. Schindler Elevator Corp., 2010 UT App 254, ¶ 8, 240 P.3d
107 (citation and internal quotation marks omitted).
A. 	Holtkamp’s Request that Proctor Assist Her in Picking Up
the Cones
¶19 	Proctor argues that Costco admitted at trial that Holtkamp
was negligent in asking Proctor to help her pick up the cones and
that this admission required that the trial court direct a verdict
against Costco on liability. The testimony which Proctor contends
amounts to an admission of negligence, however, establishes only
that Costco believed that asking a non‐employee to assist an
employee in carrying out her duties was contrary to its tenets of
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Proctor v. Costco
good customer service. For example, the store manager testified
that “Holtkamp should not have asked a non‐employee to lift the
cones” because “[i]t’s just not giving good member service” to “ask
members for help” and because “the customers can be injured.”
Proctor also elicited the following response from the assistant store
manager about Holtkamp’s knowledge of this policy:
Q: Didn’t you, in fact, tell [Holtkamp] that she should
not have asked a non‐employee to lift something for
her?
A: I’m sure I did.
Q: Okay. And Ms. Holtkamp acknowledged to you,
did she not, that she was not supposed to ask
customers for help?
A: Yes.
¶20 	Costco’s acknowledgment that Holtkamp acted contrary to
Costco’s member service rules, however, does not necessarily
establish a breach of duty, a necessary element of a successful
negligence claim. See generally Webb v. University of Utah, 2005 UT
80, ¶ 9, 125 P.3d 906 (identifying, as one of the four elements of
negligence, the breach of the defendant’s duty to conform to the
standard 	of 	conduct 	of 	a 	reasonable 	person 	in 	similar
circumstances). The duty of a business is simply to “exercise due
care and prudence for the safety of business invitees,” Dwiggins v.
Morgan Jewelers, 811 P.2d 182, 183 (Utah 1991), and “that duty
cannot be altered by higher standards prescribed by a merchant for
his or her employees,” Steffenson v. Smith’s Mgmt. Corp., 862 P.2d
1342, 1345 (Utah 1993). Whether Holtkamp’s request that Proctor
assist her in picking up the cones constituted a violation of that
duty thus does not depend on Costco’s internal rules established
to ensure customer satisfaction and to avoid injury as a general
matter, but instead on whether the request for customer assistance
constituted a breach of the duty to “exercise due care and prudence
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Proctor v. Costco
for the safety” of customers under the particular circumstances. See
Dwiggins, 811 P.2d at 183. A finding that Holtkamp’s request was
a breach is not a foregone conclusion on the evidence presented at
trial, particularly given that several witnesses, including Proctor
himself, testified that it was not unreasonable or inappropriate,
under the circumstances, for Holtkamp to ask Proctor to help pick
up the cones and given that he was, of course, free to decline the
request for assistance. Thus, whether Holtkamp’s request that
Proctor 	assist 	her 	amounted 	to 	a 	breach 	of 	duty 	was 	not
conclusively resolved simply by testimony that her supervisors
generally thought it was not a good idea to ask customers for help,
but rather was a question of fact for the jury. See B.R. ex rel. Jeffs v.
West, 2012 UT 11, ¶ 25, 275 P.3d 228 (“[B]reach . . . [is a] question[]
for the fact finder determined on a case‐specific basis.”). A directed
verdict would therefore have been inappropriate. See Florez, 2010
UT App 254, ¶ 8 (stating that the denial of a directed verdict is
appropriate when viewing the evidence in favor of the non‐moving
party, “reasonable minds could disagree with the ground asserted
for directing a verdict” (citation and internal quotation marks
omitted)).
B. 	Holtkamp’s Failure To Warn or To Instruct
¶21 	Nor has Proctor convinced us that he was entitled to a
directed verdict of negligence on his allegations that Holtkamp
failed to warn him of the weight of the cones or to instruct him on
how to lift the cones. In a footnote to his brief, Proctor asserts that
Hale v. Beckstead, 2005 UT 24, 116 P.3d 263, establishes the duty to
warn and to instruct. Proctor does not provide any analysis,
however, of how the duty in Hale, which involved the duty of care
a landowner owes when there is an open and obvious danger on
the property, id. ¶¶ 7–8, is applicable to this case. Although duty
presents a legal question, Jeffs, 2012 UT 11, ¶ 25, this court will not
undertake the burden of determining what the duty is without the
benefit of research or meaningful analysis by the appellant, see
Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903.
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Proctor v. Costco
¶22 	More significantly, even assuming for purposes of appeal
that Proctor has demonstrated a duty on Costco’s part to warn and
to instruct due to its superior knowledge, there are conflicting facts
as to whether Holtkamp actually issued a warning about the
weight of the cones and instructed Proctor on how to properly lift
them prior to his attempt to pick up the cones. Proctor testified
that, believing the cones to be lightweight, he yanked up on them,
causing a tear in his shoulder, and that it was his abrupt
acknowledgment of the injury that triggered Holtkamp to tell him
that the cones were heavier than they appeared. According to
Holtkamp, however, she not only warned Proctor prior to his
lifting the cones to be careful because they were heavy but also
instructed him on how to lift the cones. This issue was thus
properly submitted to the jury. See Mahmood v. Ross, 1999 UT 104,
¶ 16, 990 P.2d 933 (“[W]e review the trial court’s decision [to deny
directed verdict] to determine if the evidence at trial raised a
question of material fact which precluded judgment as a matter of
law.”).
¶23 	Because there were issues of fact for the jury as to whether
Costco breached its duty to “exercise due care and prudence for the
safety” of customers, see Dwiggins, 811 P.2d at 183, or any duties it
may have had to warn or instruct Proctor about lifting the cones,
we affirm the trial court’s denial of Proctor’s motion for directed
verdict.
III. Sufficiency of the Evidence
¶24 	Finally, Proctor contends that the evidence was insufficient
to support the jury’s verdict that Costco was not negligent. “In
reviewing a jury verdict, we view the evidence in the light most
supportive of the verdict, and assume that the jury believed those
aspects of the evidence which sustain its findings and judgment.”
Billings v. Union Bankers Ins. Co., 918 P.2d 461, 467 (Utah 1996)
(citation and internal quotation marks omitted). Thus, Proctor, as
the party challenging the verdict, must carry the heavy burden of
establishing “that the evidence so clearly preponderates in [his]
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Proctor v. Costco
favor . . . that reasonable people would not differ on” concluding
that Costco was negligent. See id. (citation and internal quotation
marks omitted); see also Child v. Gonda, 972 P.2d 425, 433 (Utah
1998) (“To support an insufficiency of the evidence claim on
appeal, the one challenging the verdict must marshal the evidence
in support of the verdict and then demonstrate that the evidence is
insufficient when viewed in the light most favorable to the
verdict.” (citation and internal quotation marks omitted)).
¶25 	In an attempt to carry his burden, Proctor asserts that Costco
admitted that Holtkamp was aware that it was not good customer
service for Holtkamp to ask a non‐employee to assist her in picking
up the cones and that Costco had superior knowledge about the
weight of the cones and the proper technique for lifting them. This
argument essentially repeats Proctor’s argument for why directed
verdict in his favor was appropriate. However, as we have
discussed, supra ¶ 20, this evidence does not necessarily establish
a breach of the duty Costco owed Proctor to “exercise due care and
prudence for the safety of business invitees,” see Dwiggins v.
Morgan Jewelers, 811 P.2d 182, 183 (Utah 1991); see also B.R. ex rel.
Jeffs v. West, 2012 UT 11, ¶ 25, 275 P.3d 228 (explaining that
although duty is determined as a matter of law, whether there is a
breach 	of 	that 	duty 	depends 	on 	the 	facts 	and 	is 	left 	to
determination by the factfinder). And the jury’s finding that
Costco’s 	conduct, 	through 	Holtkamp, 	was 	not 	a 	breach 	is
supported by evidence in the record. Specifically, it was supported
by Proctor’s concession that it was not unreasonable for Holtkamp
to seek his help; Costco’s manager’s and assistant manager’s
testimonies that although it was generally not good customer
service to ask a non‐employee to assist employees, it “wasn’t
inappropriate” in this situation where Holtkamp and Proctor were
engaged in a one‐on‐one conversation outside the store minutes
before it opened and no other employee was around to assist; and
Holtkamp’s testimony that Proctor “looked like he was strong,”
“like a weight lifter” who would know how to properly lift cones,
a statement that Proctor corroborated with his own testimony that
he could “dead lift[] 240 pounds” and that he was aware of proper
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Proctor v. Costco
weightlifting techniques. Although Proctor went on to say that his
ability to apply that knowledge depends on an awareness of the
weight of the item to be lifted and that had Holtkamp warned him
of the weight of the cones, he would have used a different strategy,
Holtkamp countered that she did warn Proctor of the weight of the
cones prior to his attempting to lift them and that she directed him
on how to lift them safely.
¶26 	It is the role of the jury to resolve conflicting factual
testimony, and in reviewing the jury’s verdict, we must assume
that the jury believed Holtkamp. See Nixdorf v. Hicken, 612 P.2d 348,
354 n.16 (Utah 1980) (noting that when testimony “establishes a
conflict in the evidence . . . it is the jury’s duty to resolve”); see also
Billings, 918 P.2d at 467 (“In reviewing a jury verdict, we . . .
assume that the jury believed those aspects of the evidence which
sustain its findings and judgment.” (citation and internal quotation
marks omitted)). Viewing this evidence in favor of the verdict, we
conclude that there was sufficient evidence to support the verdict.
CONCLUSION
¶27 	We affirm. Although the trial court erroneously directed a
verdict in favor of Costco on the first two allegations of negligence,
that error was harmless. The court properly denied directed verdict
to Proctor on the remaining allegations of negligence because
reasonable minds could disagree about the result. Finally, there
was sufficient evidence to support the jury verdict.
20120122‐CA 	2013 UT App 226	19